summary judgment in class action litigation: plaintiff and...

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Summary Judgment in Class Action Litigation:

Plaintiff and Defense Strategies for Filing Motions Leveraging Motions to Dispose of Claims, Establish Liability, or Improve Settlement Posture

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

THURSDAY, JUNE 22, 2017

David R. King, Partner, Herrick Feinstein, Newark, N.J.

Jeremy N. Nash, Counsel, Lite DePalma Greenberg, Newark, N.J.

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SUMMARY JUDGMENT IN

CLASS ACTION LITIGATION:

DEFENSE STRATEGIES

LEVERAGING MOTIONS TO DISPOSE OF

CLAIMS, ESTABLISH LIABILITY, OR IMPROVE SETTLEMENT POSTURE

David R. King

[email protected]

Why Class Actions are Different

1) Procedural Complexity

2) Driven by Plaintiff’s Attorneys – Not Their Clients

3) Stakes are High

4) Certification is the Key Battle

6

Initial Pleadings: Motions to Dismiss and

Motions to Strike Class

Allegations

-Typically brought together, in lieu of an answer

7

Motions to Dismiss

Purposes: Simplify the Case: Attack Legally Defective Claims

Set the Tone: Aggressive Defense

Educate the Court About The Plaintiffs’

Flaws

8

Motions to Dismiss

Strategic Considerations

1. Common Defense Approach: Why Not?

Any downside to filing a motion to dismiss?

Given stakes of class action litigation, cost not typically a

reason not to move

Courts expect to see motions to dismiss in class actions

Losing motion to dismiss will not typically affect

settlement value.

9

Motions to Dismiss Strategic Considerations

2. Significant potential upside:

May winnow the case down

May knock out high damage claims (e.g., consumer

fraud, treble damage claims)

May position the case for a more favorable settlement

10

Motions to Dismiss


3. Depending on the basis of motion, may or may not impact

claims against other class members:

Attacks based on factual allegations specific to class

representatives may allow for repleading with a new class

representative

Plaintiff will have to locate another representative without

the same defect

11

Motion to Strike Class Allegations

Purposes:

Take an early shot at defeating a class action

Send a strong message that the plaintiffs are in for a

battle

Establish weaknesses with a particular class

representative

Potentially avoid costs of class certification briefing

12



Not allowed with all Judges/Courts – Do your

research

Some courts shift burden of proof to defendants on a

motion to strike

13

Motions to Strike

Case Example:

Pilgrim v. Universal Health Card, LLC,

660 F.3d 943, 949 (6th Cir. Ohio 2011)

(appropriate to strike class claims where

no “discovery or . . . factual

development” would alter the central

defect in the class claim).

14



Best attacks are based on predominance (FRCP

23(b)(3) and ascertainability – defects in class

definition

If not an incurable defect, motion to strike may

educate Plaintiffs’ counsel and enable them to cure

an issue before the certification motion

Courts typically give option to replead

15



Choose your battles – do not bring a weak motion to

strike

Weak motions may actually set the plaintiffs up for a

successful certification motion – predispose the

Judge

16

Purposes: To defeat a class, or at least a class representative’s

claims, before certifications

avoiding the cost of the certification process

avoiding the cost and burden of class with discovery

avoiding the risk of escalation of settlement value at

certification

To educate the Court, and class counsel, on flaws in the

Plaintiffs’ case

Pre-certification Motions:

Summary Judgment

17

Pre-Certification: Summary

Judgment

Case Example:

Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 571 n.1 (8th Cir. 2015) (“Although a district court must determine whether to certify a class at ‘an early practicable time’ in the litigation, Rule 23(c)(1)(A), it is not uncommon for a district court to rule on a summary judgment motion that will clarify or simplify the litigation prior to ruling on class certification.”).

18

Pre-certification Summary

Judgment Motions Strategic Considerations

1) Winning is great – but it may not end the case

No res judicata effect on other class members

Other lawsuits can be brought

But other plaintiffs will have a strike against them

19



2) Losing motions can still help your case

Motion may force plaintiff to commit to a position

Position may be used against them on Certification

motion

Lose the battle but win the war

20

Pre-Certification Summary Judgment

Motions

Case Example:

Barnes v. Am. Tobacco Co., 161 F.3d 127,

133-34 (3d Cir. 1998) (noting that trial court

decertified class “[a]fter reviewing the

summary judgment record,” because “the

individual issue of addiction, which plaintiffs

had previously represented as playing no

part in this case, is still actually part of the

present case”).

21



3) Losing motions can affect settlement value adversely

May knock out a defense that could have been used

during negotiations

22



4) Moving before all discovery complete

Two edged sword: May avoid costs of discovery

May lose because discovery is incomplete

23

Newark | Chicago | Philadelphia

Plaintiffs’ Perspective: Summary

Judgment Practice In Class Actions

Jeremy Nash

[email protected] PART I: Precertification


mailto:[email protected]

Overview: Parts I & II.

In class actions, whether a plaintiff can or should move for

summary judgment changes over the course of a case.

Part I: The period of time leading up to the filing of the class

certification motion.

Part II: The period of time between filing the class motion

and completion of class notice, and the period of time between

completion of class notice and trial.

25

Part I: Plaintiffs’ Precertification Summary

Judgment Strategies and Tactics.

26

A. District Courts’ Discretion To Schedule

Precertification Merits Motions.

B. Why Plaintiffs Ordinarily Do Not Seek Early Merits

Determinations.

C. The Implications For Plaintiffs Of Defendants’

Precertification Summary Judgment Motions.

D. Strategies and Tactics To Keep Defendants’ Early

Merits Motions Off The Calendar.



In class actions, district court judges have broad discretion in deciding when to schedule summary judgment motions.

27

“At an early practicable time

after a person sues or is sued

as a class representative, the

court must determine by order

whether to certify the action

as a class action.”

Rule 23(c)(1)(A)

“[T]he use of the word

‘practicable’ is a signal to

judges to ‘weigh the

particular circumstances of

particular cases and decide

concretely what will work.’”

Villa v. San Francisco Forty-Niners,

Ltd., 104 F. Supp. 3d 1017, 1020

(N.D. Cal. 2015) (quoting Wright

v. Schock, 742 F.2d 541, 543 (9th

Cir. 1984)).



The court’s discretion to schedule summary judgment motions before the class motion is well-established.

28

“The court may rule on

motions pursuant to Rule

12, Rule 56, or other

threshold issues before

deciding on certification.”

Manual for Complex

Litigation, Fourth § 21-133

“[A]bsent prejudice to the

plaintiff, the court is free to

decide a defendant’s

dispositive motion in a

putative class action before

taking up the issue of class

certification.”

McNulty v. Fed. Hous. Fin.

Agency, 954 F. Supp. 2d 294,

297 (M.D. Pa. 2013), aff ’d (Mar.

18, 2014)

B. Plaintiffs Ordinarily Do Not Seek Early

Merits Determinations.

29

Absent extraordinary circumstances, plaintiffs in class

actions do not and should not seek leave to move for

summary judgment prior class certification.

Plaintiffs have little to gain from an early determination on

the merits.

In any event, they are generally barred by the rule against

“one-way intervention.”



30

Until a class is certified,

merits determinations

bind only the named

parties.

“[A]ny ruling by the court

prior to class certification

would bind only the

named parties”

McNulty v. Fed. Hous. Fin.

Agency, 954 F. Supp. 2d 294,

298 n.2 (M.D. Pa. 2013),

aff ’d (Mar. 18, 2014).



The rule against “one-way intervention” generally bars plaintiffs’ from seeking precertification merits rulings.

31

The rule prevents would-be class members from previewing the viability of the named plaintiffs’ claims before subjecting themselves to the binding effect of the court’s ruling.

Such one-way intervention has historically be viewed as unfair, and as raising due process concerns.

The rule protects defendants from “being pecked to death by ducks. One plaintiff could sue and lose; another could sue and lose; and another and another until one finally prevailed; then everyone else would rise on that single success.” Premier Elct. Const. Co. v. Nat’l

Elec. Contractors Assn., Inc., 814 F.2d 358, 362 (7th Cir. 1987).



32

“The rule against one-way intervention, however, prevents plaintiffs from seeking class certification after obtaining a favorable ruling on the merits of their claim.”

McLaughlin on Class Actions § 3:3.

Resolving dispositive motions after class certification “eliminates concerns over ‘one-way intervention,’ in which members of a class may ‘benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one.’”

Newberg on Class Actions § 7:8.



33

There are exceptions to the rule that, when present,

eliminate concerns over one-way intervention that

otherwise bar plaintiffs’ from filing early merits motions.

The rule against one-way intervention may not apply if plaintiffs

principally seek injunctive relief and intend to certify a class

pursuant to Rule 23(b)(2).

The bar may also fall away if the defendant waives the

protections of the rule.



The rule against one-way intervention generally applies only where the principal relief sought is monetary.

34

A number of courts have found there is “no support for applying the prohibition on one-way intervention to Rule 23(b)(2) class certifications, in which class members may not opt out and therefore make no decision about whether to intervene.” Gooch v. Life Investors Ins. Co. of

America, 672 F.3d 402, 433 (6th Cir. 2012) (citing Paxton v. Union Natl. Bank, 688 F.2d 552, 558–59 (8th Cir. 1982)).

Where a plaintiff class seeks only declaratory or injunctive relief, certification under Rule 23(b)(2) “readily leads to binding all members of the class to both favorable and unfavorable judgments.” The overriding concern over one-way intervention “legitimately arises only where monetary relief is the sole relief sought, not where . . . injunctive relief was and is so importantly at stake.” Williams v. Lane, 129 F.R.D. 636,

640–42 (N.D. Ill. 1990).



Defendants are free to waive the protections provided by the rule against one-way intervention at any time.

35

“[T]he strongest argument for forbidding post-judgment class certification is that pre-judgment certification and notice to the class are necessary to protect the defendant from future suits by potential members of the class. But that rationale disappears when the defendant himself moves for summary judgment before a decision on class certification. In such a situation, the defendants assume the risk that a judgment in their favor will not protect them from subsequent suits by other potential class members, for only the slender reed of stare decisis stands between them and the prospective onrush of litigants.” Schwarzchild v. Tse, 69 F.3d 293, 297 (9th Cir. 1995).

C. The Implications Of Defendants’ Early

Summary Judgment Motions For Plaintiffs.

The calendaring of the motion itself has negative consequences for class plaintiffs and should be avoided if at all possible.

36

Signals Court’s View That Your Case Seriously Lacks Merit.

Derails Discovery Unrelated to Motion.

Delays Filing of Class Motion.



District court judges are predisposed against sequencing summary judgment motions ahead of class certification motions.

37

“While district courts

typically rule on class

certification first, Rule 23

and its sub-rules are flexible

and do not preclude

summary judgment prior to

class certification.”

Villa v. San Francisco Forty-

Niners, Ltd., 104 F. Supp. 3d

1017, 1020 (N.D. Cal. 2015).

“Normally the issue of certification should be resolved first, because if a class is certified this sets the stage for a settlement and if certification is denied the suit is likely to be abandoned, as the stakes of the named plaintiffs usually are too small to justify the expense of suit, though that may not be true in this case.”

Thomas v. UBS AG, 706 F.3d 846, 849 (7th Cir. 2013).



38

District court judges will reverse the usual order of these motions, and permit defendants to make an early summary judgment motion, only if there is reason to believe that the plaintiff ’s case clearly lacks merit.

“Ruling on a dispositive motion prior to addressing class certification issues may be appropriate where there is sufficient doubt regarding the likelihood of success on the merits of a plaintiff's claims, where inefficiency would otherwise result, or where neither plaintiffs nor members of the putative class would be prejudiced.” McLaughlin on Class

Actions § 3:3.



39

“[D]eciding whether to certify a class can take a long time,” and concluding that, “when as in this case the suit can quickly be shown to be groundless, it may make sense for the district court to skip certification and proceed directly to the merits.” Thomas v. UBS AG, 706 F.3d 846,

849-50 (7th Cir. 2013).

“[I]t is often more efficient and fairer to the parties to decide the class question first. But that was not so in this case where, as we discuss below, the district court readily and correctly perceived fatal flaws in plaintiffs’ claims. Reversing the usual order of disposition in such circumstances spares both the parties and the court a needless, time-consuming inquiry into certification.” Curtin v. United Airlines, Inc., 275

F.3d 88, 92-93 (D.C. Cir. 2001).



The scheduling of a precertification summary judgment motion also has the potential to derail your discovery effort.

40

Today, class actions typically have a unified discovery schedule, with merits and class discovery proceeding together.

This is a result of a series of Supreme Court rulings that require district courts to consider the merits of plaintiffs’ claims if they bear on the class motion.

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“Rule 23 does not set forth a mere pleading standard.”).

Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 568 U.S. 455, 133 S. Ct. 1184, 1194-95 (2013), (“Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”).

Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432-33 (2013) (reiterating that the prerequisites to class certification require evidentiary proof and chiding court of appeals for “refusing to entertain arguments” at the class certification stage merely because they overlap with the merits.”).



Courts that entertain early merits motions also generally stay all discovery unrelated to that motion.

41

“If the resolution of the summary judgment motion may eliminate the need to consider the certification motion ab initio, the court's interest in preserving judicial resources, as well as the resources of the litigants, counsels in favor of addressing the summary judgment motion first.”

Cruz v. American Airlines, 150 F. Supp. 2d 103 (D.D.C. 2001).

“[I]t would be counterintuitive

to allow class discovery to

proceed where a court has

elected to defer ruling on

class certification until it first

decides a motion for summary

judgment.”

GMS Mine Repair & Maint., Inc. v.

Miklos, 798 S.E. 2d 833, 845 (W.

Va. 2017).



42

Calendaring defendants’

precertification summary

judgment motion means,

assuming the case survives

the motion, a significant

delay in proceeding to

class certification.

Motions for summary

judgment also often take

three to six months to

resolve, if not longer.

D. Strategies To Keep Defendants’ Early


43

Many issues that are teed up for determination on the

merits prior to class certification cannot be avoided.

For example, some cases involve issues where the law is

undeveloped.

Liability may also turn on recent scientific studies or a

novel application of well-established science.

There are sometimes issues “baked” into plaintiffs’ case

that, once identified by the district court judge, are going

to be resolved on the merits irrespective of any

planning or maneuvering by the parties.



44

Plaintiffs are nevertheless able to guard against certain

types of precertification summary judgment motions:

Motions premised on issues unique to the named plaintiffs.

Motions directed at fewer than all claims.

Motions raised late in the discovery period.



Plaintiffs should always name multiple plaintiffs and assert all non-frivolous claims.

45

The best insurance against

a precertification

summary judgment

motion is to file with

multiple plaintiffs and

assert all viable theories

of relief at the very

beginning of the case.

The presence of

alternative representatives

and claims mean the case

is likely to progress

through discovery to the

class motion irrespective

of a motion unique to

one plaintiff or claim.



In class actions, plaintiffs should always pursue a unified discovery schedule.

46

Plaintiffs may be able to

substantially complete

class discovery before

defendants’ identify merits

issues.

Those who do may gain

additional grounds on

which to oppose the

scheduling of the motion.

With class discovery

nearly complete, an early

motion is less likely to

conserve resources.

The potential efficiencies

produced by early merits

motions are the driving

factor for hearing them.



Plaintiffs’ counsel in class actions should always communicate with the class representatives.

47

Named plaintiffs

sometimes provide

grounds for an early

dispositive motion.

Plaintiffs’ counsel should

identify conduct the

class representative might

engage in that would

undermine the case.

Plaintiffs’ counsel should

talk with the class

representative about

those particular issues.

It is also good practice to

ask class representatives

to be mindful of their

duties and obligations

to absent class members.

Part I: Summary.

48

District court judges have discretion to schedule summary judgment motions on a case-by-case basis.

Plaintiffs do not ordinarily make early merits motions.

Plaintiffs are generally barred from seeking early merits rulings by the rule against one-way intervention.

Plaintiffs will not be able to avoid most defendants’ precertification summary judgment motions.

Plaintiffs mitigate the risk of defending against early merits motions by naming multiple plaintiffs, asserting multiple alternative theories of recovery, aggressively pursuing class discovery, and communicating with counsel about conduct that might undermine the case.

SUMMARY JUDGMENT IN

CLASS ACTION LITIGATION:

DEFENSE STRATEGIES

LEVERAGING MOTIONS TO DISPOSE OF

CLAIMS, ESTABLISH LIABILITY, OR IMPROVE SETTLEMENT POSTURE

David R. King

[email protected]

What has changed?

Everything! Certification is the Plaintiffs’ main goal

Increases exposure

Increases pressure

Increases settlement leverage

Post-certification: Summary

Judgment

50

Post-certification: Summary

Judgment

What can Defendants do post-certification?

23(f) Petition

Win the case

Establish grounds to de-certify the class

Summary judgment motion becomes the best, last

opportunity to defeat the case

51

Purposes / Goal

To win the case (obviously)

52

Case Example: Grayson v. 7-Eleven, Inc., 2013 WL 1187010 (S.D. Cal. March 21, 2013)

Class of former 7-Eleven franchises certified to pursue federal excise tax refunds paid to defendant. Case was certified, decertified when the parties both moved for summary judgment, and then certified again, without opposition. On the second round of summary judgment motions, 7-Eleven argued that former franchise owners’ claims were barred by releases when they terminated franchises. Court agrees, and enters summary judgment for defendant.

53

Purposes / Goal

Set the scene for, or buttress, a motion for

decertification

54

Case Example: Webb v. Exxon Mobil Corp., 856 F.3d 1150 (8th Cir. May 11, 2017)

Plaintiffs, landowners subject to easements granted to Exxon to operate an oil pipeline, brought class action for rescission, injunction relief, and damages, based on Exxon’s claimed failure to maintain the pipeline and several leaks. The Arkansas District Court initially certified the class; but on motion to decertify and motion for summary judgment, granted both motions. Eight Circuit Court of Appeals affirms. Plaintiffs sought to represent class covering four states, with different laws, and each easement holder would have to show breach with respect to its own property. Class Reps could not do so: Class decertified, summary judgment affirmed.

55

Purposes / Goal

Narrow the class

56

Purposes / Goal

Limit the damages

57

Case Example: Morales v. Kraft Foods Group, Inc., 2017 WL 2598556 (C.D. Cal. June 9, 2017)

Labeling case alleging false claims of “natural cheese.” Class certified under FRLP 23(b)(3). Court grants partial motion for summary judgment, and motion to decertify the class. Kraft successfully established that Plaintiffs had failed to develop any evidence that would support the rescission damages sought by the certified class. Summary judgment granted as to damages, class decertified. Plaintiffs given leave to attempt to certify an injunctive class.

58

Purposes / Goal

Obtain leverage for settlement

59

Purposes / Goal

Force opposing counsel to present evidence that

ultimately undermines class certification

60


Post-certification summary judgment motion is likely the last

step before trial

Last chance to position the case for settlement

Last chance to reopen the case for de-certification

Last chance to attack

61


Post-class notice certification summary judgment motion is the

first chance to get a binding judgment against anyone other

than the class representatives

Should you wait until after class notice?

Several downsides – cost; higher exposure;

Missed opportunities for settlement

Most defense attorneys will not wait for the res

judicata advantage

62


Post-certification summary judgment comes after full discovery

Opportunity to divide and conquer sub-classes

Better evidence to support the motion

63


Post-certification summary judgment motions can create

opportunity to revisit certification

Second chance to attack issues like predominance,

superiority adequacy

64


Plaintiffs’ Perspective: Summary

Judgment Practice In Class Actions

Jeremy Nash

[email protected] PART II: Post-certification


mailto:[email protected]

Overview: Parts I & II.

In class actions, whether a plaintiff can or should move for

summary judgment changes over the course of a case.

Part I: The period of time leading up to the filing of the class

certification motion.

Part II: The period of time between filing the class motion

and completion of class notice, and the period of time between

completion of class notice and trial.

66

Part II: Plaintiffs’ Post-certification

Summary Judgment Strategies and Tactics.

67

A. Claims More And Less Susceptible To Resolution On A

Summary Judgment Motion.

B. When Plaintiffs Should Consider Filing Class and

Summary Judgment Motions Together.

C. Plaintiffs’ Summary Judgment Motions Filed After Class

Notice Is Complete.

D. Strategies and Tactics To Opposing Defendants’ Post-

certification Summary Judgment Motions.

A. Claims Susceptible To Resolution On A


68

Essentially all plaintiffs’

summary judgment

motions are made with

the motion for class

certification or after

class notice has been

completed.

Certain claims are easier

to resolve on a summary

judgment motion and are

more likely to be the

subject of plaintiffs

summary judgment

motions.



69

Breach of Contract.

Contract claims are often susceptible to resolution on a

motion for summary judgment.

They are particularly appropriate for summary judgment where

there are no dispute as to the parties’ intent or the

meaning of contract terms.

In class litigation, contract claims generally arise in the

consumer and employment contexts.



70

Certain Statutory Violations.

Many statutory violations do not present difficult factual

issues that otherwise bar resolution on summary judgment.

Plaintiffs’ summary judgment motions on these types of claims

are frequently made and granted.

Telephone Consumer Protection Act (TCPA)

Fair Debt Collections Practices Act (FDCPA)



Certain other claims are tend to present difficult factual issues and are less appropriate for resolution under Rule 56.

71

Antitrust Violations.

Establishing liability in antitrust cases requires establishing

intent, credibility, and conspiracy, all of which are typically

difficult factual issues that must be established at trial.

Employment Discrimination.

Establishing liability in employment discrimination cases

requires proving intent and motive, which are also generally

inappropriate to resolve without a full trial.



72

Fraud.

In cases involving common-law fraud and violations of federal

securities there are usually genuine disputes as to whether a

party acted with the requisite level of intentionality.

Products Liability.

Product liability cases often present complicated factual

questions and require establishing whether a defendant knew

or should have known that its product was defective, that

the defendant's product was in fact defective, or that the

defendant had a duty to warn.

B. When Plaintiffs Should File Class and


73

The rule against one-way intervention continues to bar plaintiffs from seeking a merits determination prior the completion of class notice.

One-way intervention may not be a concern if one or more of the exceptions to the rule apply:

The rule does not apply where plaintiffs are mainly seeking injunctive relief.

Nor does it apply if defendants have waived the protections of the rule by filing their own summary judgment motion.



74

There are significant

advantages for plaintiffs

who prevail on class and

summary judgment

motions prior to class

notice.

Plaintiffs may be able to

shift the cost of class

notice to the defendants.

Plaintiffs add to the case’s

settlement value.

Permits plaintiffs to flesh

out merits issues that

pertain to class motion.



Plaintiffs who prevail on the merits of a class claim prior to class certification may shift the cost of notice to defendants.

75

“The usual rule is that a

plaintiff must initially bear

the cost of notice to the

class.”

Eisen v. Carlisle & Jacquelin,

417 U.S. 156, 178 (1974).

However, “the district

court has some

discretion” in allocating

the cost of complying with

an order concerning class

notification.

Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 350

(1978).



76

Numerous district courts have placed notice costs on the class action defendant once liability has been established.

Six (6) Mexican Workers v. Ariz. Citrus Growers, 641 F. Supp. 259, 264 (D. Ariz. 1986) (directing defendants to pay notice costs in part because “liability of the defendants will have already been established”).

Macarz v. Transworld Sys., Inc., 201 F.R.D. 54, 58 (D. Conn. 2001) (agreeing with the plaintiff that “because liability has already been determined, defendant bears the cost of notice to the class”).

Catlett v. Missouri Highway and Transp. Comm'n, 589 F. Supp. 949, 952 (D. Mo. 1984) (shifting notice costs “because the liability of the [defendant] has been established”).



77

These and other similar rulings “establish a general

principle that ‘interim litigation costs, including class

notice costs, may be shifted to defendant after plaintiff's

showing of some success on the merits, whether by

preliminary injunction, partial summary judgment,

or other procedure.’”

Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137, 1143 (9th Cir.

2009), cert. denied, 130 S. Ct. 154 (2009).



78

Plaintiffs who have the opportunity to move for class

certification and summary judgment at the same time

should do so.

It bears repeating that district court judges are

predisposed against hearing summary judgment motions

before class notice is completed.

Courts routinely deny applications by both plaintiffs and

defendants to move for summary judgment before the

class motion has been decided and notice completed.

C. Plaintiffs’ Summary Judgment Motions

Filed After Class Notice Is Complete.

The vast majority of plaintiffs’ summary judgment motions are filed after class notice is complete, if at all.

79

A class certification decision firmly establishes the stakes

of a class action.

They set out the class claims.

They define class membership.

They establish a class period.



80

Once a class has been certified, the parties do not

ordinarily proceed directly to summary judgment.

Defendants invariably file a Rule 23(f) application for leave

to file an interlocutory appeal of the order certifying a class.

If granted, the class decision will go up on appeal.

If denied, the parties may attempt to settle.

If the settlement fails, the class may be entitled to notice.



81

Deferring summary judgment practice until class notice is

completed occurs and is appealing for many reasons.

The ruling will be binding on all parties.

Any concerns over one-way intervention have been

eliminated by the notice and opt-out procedure.

The stakes of the litigation have been clearly defined.

D. Opposing Defendants’ Post-certification

Summary Judgment Motions.

82

Plaintiffs’ strategies and tactics with respect to summary

judgment practice that occurs after a class has been

certified are generally not unique to class actions.

D. Opposing Defendants’ Post-certification

Summary Judgment Motions.

Nevertheless, there are some pitfalls plaintiffs should avoid that relate to summary judgment practice.

83

Authenticate Documents.

Plaintiffs in class action are notorious for failing to authenticate documents during class discovery.

Rule 56(c)(2) states that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”

Seek Leave To Substitute

the Class Representative.

Plaintiffs in class actions

confronted with a merits

motion unique to an

individual plaintiff should be

mindful that they can

always seek to substitute

a member of the class.

Part II: Summary.

84

Essentially all plaintiffs’ summary judgment motions are made

with the motion for class certification or after class

notice has been completed.

Contract claims and statutory violations tend to be

better suited for resolution under Rule 56.

Plaintiffs who prevail on early summary judgment motions may

be able to shift the cost of class notice to defendants.

Plaintiffs more often file summary judgment motions after

class notice has been completed.

Plaintiffs should be mindful to authenticate documents and

identify alternative class representatives during discovery.